Posts Tagged ‘Federal Government’

It began in the early 1940s. FDR had launched the New Deal’s collectivization of America, and a small but prescient group of libertarian and conservative intellectuals were in rebellion – such thinkers as Richard Weaver, Ludwig von Mises, Friedrich Hayek, John T. Flynn, Rose Wilder Lane, Isabel Paterson, and Ayn Rand, to be followed a decade later by the likes of Russell Kirk, Frank Meyer, and Murray Rothbard.

Out of their cerebral and activist efforts there began the movement to repeal the overweening statism that was infiltrating America from Europe via Karl Marx and John Maynard Keynes. The infamous year of 1913 was the infiltration’s major manifestation. FDR’s New Deal was its Rubicon. In reaction to the radical political changes taking place during the 1913-1940 era, today’s freedom movement was born.

It is not well-known by the general public, but when the modern freedom movement first began in the early 1940s, it was not split between libertarians and conservatives. It was one coalition unified in rebellion against FDR’s monster welfare state. By 1970, however, the movement had become tragically bifurcated. The radical economist Murray Rothbard took libertarians off into anarchy, while the traditionalist philosopher Russell Kirk drove conservatives into statism. This split has created two incomplete visions – contemporary libertarianism and conservatism – that are, in their singularity, incapable of effectively challenging the authoritarian mega-state.

Conservatives are caught up in the puritanical swamps of legislating morality and hegemonic conquest of the world, while libertarians chase the philosophical absurdities of moral subjectivism and ersatz individualism. Conservatives wish to return to the Middle Ages and mandate morality via the state, while Libertarians wish to do away with any reference to morality altogether. Conservatives revere leaders like Savonarola and John Calvin. Libertarians excite themselves with Larry Flynt and the Beatles’ “Nowhere Man.” Somewhere the Founding Fathers are twisting in their graves over each of these political movements and their embarrassing lack of comprehension concerning the requisites for a free and individualist society.

How do we confront this lack of comprehension? We must purge the libertarian and conservative movements of the fallacies they have adopted from Murray Rothbard and Russell Kirk. This will require a “rational theory of politics” that can bring together the two philosophical streams of John Locke and Edmund Burke so as to restore the original Republic of States that Jefferson and the Founders envisioned. More on this theory shortly.

The Tragic Bifurcation

In the aftermath of LBJ’s defeat of the Goldwater forces in the 1964 election, most libertarians, under the influence of the pied piper Murray Rothbard, split off from the official path of the freedom movement and wandered into the utopian forest of some very radical political-philosophical principles – those of anarchism.

In contrast, conservatives went the other direction by abandoning principle altogether to align themselves with Irving Kristol’s collectivist neo-conservatives and tolerate the very government usurpations their movement had been formed to repeal. They began their sellout when Richard Nixon declared in 1971 that, “We’re all Keynesians now.” They continued it with Ronald Reagan’s massive expansion of the welfare state and when George W. Bush launched a tide of spending, privilege, and corruption totally unhinged from sanity and reality.

Can today’s freedom movement be rescued from this tragedy of default? Can the American people be convinced to restore the Republic? Yes, but in order for such a revolution to actually take place, American libertarians and conservatives must face up to some unsettling realities and take appropriate action.

The conservative wing of the “freedom movement” has been grievously corrupted by Machiavellian statists. The most important cause of this has been Russell Kirk’s philosophical emphasis on tradition being transcendent to reason and his rejection of “equal individual rights” in favor of special privileges and a flexible Constitution. This has led conservatives into a Faustian bargain with the statist enemy and opened the door for the hijacking of their movement by neoconservatives, thus moving most of today’s conservatives to the left into lockstep with statist liberals.

The libertarian wing of the “freedom movement” has been equally corrupted, but in the opposite direction to the far right on the spectrum. The most important cause of this has been Murray Rothbard’s anarchist politics that privatizes all functions of the government, even the military, police, and courts of law. In addition his followers espouse an egoistic “do your own thing” culture that refuses to morally condemn the traditional evils of history. Whatever is peaceful is their creed. It is a sense of life that worships what the Greeks called the sin of “eleutheromania,” freedom without limits.

To better understand the nature of this disastrous split between libertarians and conservatives, a brief exposition of America’s concept of freedom is necessary.

Jeffersonianism Is America’s Philosophy

The American concept of freedom has its ideological roots in the Founders’ libertarian political ideal, combined with conservative metaphysics and culture. It is a blend of the 17th and 18th century thinkers, John Locke and Edmund Burke (one libertarian and the other conservative), which heavily influenced Americans from the start and up through World War I – the former emphasizing reason and individualism, the latter tradition and community. It manifested in what is called Jeffersonianism.

This political philosophy stands for the individual over the collective, a strictly limited constitutional government based upon federalism, equal “rights” instead of equal “results,” a free-market economy, no entangling foreign alliances, and an objective code of morality for society as opposed to the moral neutrality of Rothbardians and modern liberals. This is what needs to be restored.

The famous conservative philosopher, Richard Weaver, at the University of Chicago in the 1940s and 1950s, and author of the great classic, Ideas Have Consequences, understood well this Jeffersonian concept of America and shaped his defense of freedom around it accordingly. Unlike today’s neoconservatives, Weaver understood the necessity of limiting the tyrannical danger of the state. He would be horrified with today’s neoconservative attacks upon the Founders’ vision of laissez-faire. He grasped the philosophical common ground between libertarianism and conservatism:

“[C]onservatives and libertarians stand together,” he said. “Both of them believe that there is an order of things which will largely take care of itself if you leave it alone.” Weaver was a strict constitutionalist because a Constitution provided for a “settled code of freedom for the individual.”

This is the crucial issue of our time – restoration of libertarian conservatism in America and its “settled code of freedom for the individual.” If we, who believe in free enterprise and the Constitution, wish to reverse America’s drift into an authoritarian state, our goal must not be to accommodate, but to purge the Gargantua on the Potomac that usurps our rights and freedoms with impunity. Libertarians and conservatives must be reunited to effectively challenge this monster.

My book, The Golden Mean: Libertarian Politics, Conservative Values explains the need for this ideological unification and how to bring it about. I realize authors don’t usually promote their own books in their articles, but in defense of my lack of orthodoxy, I cite the popular economist, Walter Williams.

Several years ago he was writing a review in his newspaper column for one of his own books. And in defense of his partisan effort, Professor Williams explained to his readers that his mother had always told him, “it’s a poor dog who won’t wag his own tail.” So if the reader will indulge me, I would like to partake in a little tail wagging.

The Golden Mean is the philosophical answer to our immensely troubled times. It puts forth the “rational theory of politics” referred to earlier, and which we desperately need in order to challenge the authoritarian statism that has been destroying our republic ever since 1913.

The libertarian movement is lost in “utopian unreality.” The conservative movement is lost in “statist appeasement.” This is because of the disastrous libertarian-conservative split spawned by Murray Rothbard and Russell Kirk back in the 1960s. Without a correction of this split, freedom cannot be adequately defended and restored. Both libertarian and conservative activists are terribly misguided in their insistence on remaining separate movements. Conservatism needs libertarian politics in order to be just, and libertarianism needs conservative moral values in order to be workable.

The statist Gargantua controls our lives today because there is no effective ideological counterforce to overthrow its moral-philosophical-theoretical base. The Golden Mean provides that counterforce because it shows how to once again merge the two great systems of philosophical thought that brought America into being: libertarianism and conservatism. It shows how to recapture the Jeffersonian ideal.

JEFFERSON CITY, Mo. (AP) — Imagine the scenario: A federal agent attempts to arrest someone for illegally selling a machine gun. Instead, the federal agent is arrested — charged in a state court with the crime of enforcing federal gun laws.

Farfetched? Not as much as you might think. The scenario would become conceivable if legislation passed by Missouri’s Republican-led Legislature is signed into law by Democratic Gov. Jay Nixon. The Missouri legislation is perhaps the most extreme example of a states’ rights movement that has been spreading across the nation. States are increasingly adopting laws that purport to nullify federal laws — setting up intentional legal conflicts, directing local police not to enforce federal laws and, in rare cases, even threatening criminal charges for federal agents who dare to do their jobs.

An Associated Press analysis found that about four-fifths of the states now have enacted local laws that directly reject or ignore federal laws on marijuana use, gun control, health insurance requirements and identification standards for driver’s licenses. The recent trend began in Democratic leaning California with a 1996 medical marijuana law and has proliferated lately in Republican strongholds like Kansas, where Gov. Sam Brownback this spring became the first to sign a measure threatening felony charges against federal agents who enforce certain firearms laws in his state.

Some states, such as Montana and Arizona, have said “no” to the feds again and again — passing states’ rights measures on all four subjects examined by the AP — despite questions about whether their “no” carries any legal significance.

“It seems that there has been an uptick in nullification efforts from both the left and the right,” said Adam Winkler, a professor at the University of California at Los Angeles who specializes in constitutional law.

Yet “the law is clear — the supremacy clause (of the U.S. Constitution) says specifically that the federal laws are supreme over contrary state laws, even if the state doesn’t like those laws,” Winkler added.

The fact that U.S. courts have repeatedly upheld federal laws over conflicting state ones hasn’t stopped some states from flouting those federal laws — sometimes successfully. About 20 states now have medical marijuana laws allowing people to use pot to treat chronic pain and other ailments — despite a federal law that still criminalizes marijuana distribution and possession. Ceding ground to the states, President Barack Obama’s administration has made it known to federal prosecutors that it wasn’t worth their time to target those people.

Federal authorities have repeatedly delayed implementation of the 2005 Real ID Act, an anti-terrorism law that set stringent requirements for photo identification cards to be used to board commercial flights or enter federal buildings. The law has been stymied, in part, because about half the state legislatures have opposed its implementation, according to the National Conference of State Legislatures.

About 20 states have enacted measures challenging Obama’s 2010 health care laws, many of which specifically reject the provision mandating that most people have health insurance or face tax penalties beginning in 2014.

After Montana passed a 2009 law declaring that federal firearms regulations don’t apply to guns made and kept in that state, eight other states have enacted similar laws. Gun activist Gary Marbut said he crafted the Montana measure as a foundation for a legal challenge to the federal power to regulate interstate commerce under the U.S. Constitution. His lawsuit was dismissed by a trial judge but is now pending before the 9th U.S. Circuit Court of Appeals.

“The states created this federal monster, and so it’s time for the states to get their monster on a leash,” said Marbut, president of the Montana Shooting Sports Association. The Supreme Court ruled in 1997 that local police could not be compelled to carry out provisions of a federal gun control law. But some states are now attempting to take that a step further by asserting that certain federal laws can’t even be enforced by federal authorities.

A new Kansas law makes it a felony for a federal agent to attempt to enforce laws on guns made and owned in Kansas. A similar Wyoming law, passed in 2010, made it a misdemeanor. The Missouri bill also would declare it a misdemeanor crime but would apply more broadly to all federal gun laws and regulations — past, present, or future — that “infringe on the people’s right to keep and bear arms.

U.S. Attorney General Eric Holder sent a letter in late April to the Kansas governor warning that the federal government is willing to go to court over the new law. “Kansas may not prevent federal employees and officials from carrying out their official responsibilities,” Holder wrote.

Federal authorities in the western district of Missouri led the nation in prosecutions for federal weapons offenses through the first seven months of the 2013 fiscal year, with Kansas close behind, according to a data clearinghouse at Syracuse University.

Felons illegally possessing firearms is the most common charge nationally. But the Missouri measure sets it sights on nullifying federal firearms registrations and, among other things, a 1934 law that imposes a tax on transferring machine guns or silencers. Last year, the federal government prosecuted 83 people nationally for unlawful possession of machine guns.

So what would happen if a local prosecutor actually charges a federal agent for doing his or her job? “They’re going to have problems if they do it — there’s no doubt about it,” said Michael Boldin, executive director of the Tenth Amendment Center, a Los Angeles-based entity that promotes states’ rights. “There’s no federal court in the country that’s going to say that a state can pull this off.”

Yet states may never need to prosecute federal agents in order to make their point. If enough states resist, “it’s going to be very difficult for the federal government to force their laws down our throats,” Boldin said.

Missouri’s governor has not said whether he will sign or veto the bill nullifying federal gun laws. Meanwhile, thousands of people have sent online messages to the governor’s office about the legislation.

Signing the measure “will show other states how to resist the tyranny of federal bureaucrats who want to rob you of your right to self-defense,” said one message, signed by Jim and Arlena Sowash, who own a gun shop in rural Stover, Mo.

Others urged a veto. “Outlandish bills like this — completely flouting our federal system — make Missouri the laughingstock of the nation,” said a message written by Ann Havelka, of the Kansas City suburb of Gladstone.

When Idaho Governor C.L. “Butch” Otter signed HO391 into law on 17 March 2010, the “national” news media circled the wagons and began another assault on State sovereignty. The bill required the Idaho attorney general to sue the federal government over insurance mandates in the event national healthcare legislation passed. The lead AP reporter on the story, John Miller, quoted constitutional “scholar” David Freeman Engstrom of Stanford Law School as stating that the Idaho law would be irrelevant because of the “supremacy clause” of the United States Constitution.

In his words, “That language is clear that federal law is supreme over state law, so it really doesn’t matter what a state legislature says on this.”Now that Barack Obama has signed healthcare legislation into law, almost a dozen States have filed suit against the federal government, with Idaho in the lead. Battle lines have been drawn. Unfortunately, the question of State sovereignty and the true meaning of the “supremacy clause” may be swallowed up in the ensuing debate.

Engstrom’s opinion is held by a majority of constitutional law “scholars,” but he is far from correct, and Idaho and the thirty seven other States considering similar legislation have a strong case based on the original intent of the powers of the federal government vis-Ã -vis the States.

The so-called “supremacy clause” of the Constitution, found in Article 6, states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding [emphasis added].”

The key, of course, is the italicized phrase. All laws made in pursuance of the Constitution, or those clearly enumerated in the document, were supreme, State laws notwithstanding. In other words, the federal government was supreme in all items clearly listed in the document.

A quick reading of the Constitution illustrates that national healthcare is not one of the enumerated powers of the federal government, so obviously Engstrom’s blanket and simplistic statement is blatantly incorrect, but his distortion of the supremacy clause goes further.

The inclusion of such a clause in the Constitution was first debated at the Constitutional Convention on 31 May 1787. In Edmund Randolph’s initial proposal, called the Virginia Plan, the “national” legislature had the ability to “legislate in all cases to which the separate states are incompetent” and “to negative all laws passed by the several states contravening, in the opinion of the national legislature, the Articles of Union.” John Rutledge, Pierce Butler, and Charles Pinckney of South Carolina challenged the word “incompetent” and demanded that Randolph define the term. Butler thought that the delegates “were running into an extreme, in taking away the powers of the states” through such language.

Randolph replied that he “disclaimed any intention to give indefinite powers to the national legislature, declaring that he was entirely opposed to such an inroad on the state jurisdictions, and that he did not think any considerations whatever could ever change his determination [emphasis added].” James Madison, the author of the Virginia Plan, was not as forthcoming as to his sentiment. Ultimately, Madison preferred a negative over State law and wished the national legislature to be supreme in call cases. But he was not in the majority.

The Convention again broached a federal negative on State law on 8 June 1787. Charles Pinckney, who presented a draft of a constitution shortly after Randolph offered the Virginia Plan, believed a national negative necessary to the security of the Union, and Madison, using imagery from the solar system and equating the sun to the national government, argued that without a national negative, the States “will continually fly out of their proper orbits, and destroy the order and harmony of the political system.” Such symbolism made for a beautiful picture, but it belied reality.

To most of the assembled delegates, the national government was not the center of the political universe and the States retained their sovereignty. Hugh Williamson of North Carolina emphatically stated he “was against giving a power that might restrain the states from regulating their internal police.”

Elbridge Gerry of Massachusetts was against an unlimited negative, and Gunning Bedford of Delaware believed a national negative was simply intended “to strip the small states of their equal right of suffrage.” He asked, “Will not these large states crush the small ones, whenever they stand in the way of their ambitious or interested views?”

When the negative power was put to a vote, seven States voted against it and three for it, with Delaware divided (and Virginia only in the affirmative by one vote). Roger Sherman of Connecticut summarized the sentiment of the majority when he stated he “thought the cases in which the negative ought to be exercised might be defined.” Since the negative did not pass, such a definition was unnecessary.

Thus, the federal government was supreme only in its enumerated powers and it did not have a negative over State law. Supremacy had limits.

By the time the Constitution was debated in the several State ratifying conventions in 1787 and 1788, the “supremacy clause” galvanized opponents of the document. The Constitution, they said, would destroy the States and render them impotent in their internal affairs. The response from proponents of ratification illuminates the true intent of the clause. William Davie, a delegate to the Constitutional Convention from North Carolina and proponent of the Constitution, responded to attacks levied on the “supremacy clause” by stating that:

This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land. Every power ceded by it must be executed without being counteracted by the laws or constitutions of the individual states. Gentlemen should distinguish that it is not the supreme law in the exercise of power not granted. It can be supreme only in cases consistent with the powers specially granted, and not in usurpations [emphasis added].

Davie wasn’t alone in this opinion. Future Supreme Court justice James Iredell of North Carolina argued that, “This clause [the supremacy clause] is supposed to give too much power, when, in fact, it only provides for the execution of those powers which are already given in the foregoing articles.If Congress, under pretence of executing one power, should, in fact, usurp another, they will violate the Constitution [emphasis added].”

Furthermore, in a foreshadowing of nullification, Iredell argued that, “It appears to me merely a general clause, the amount of which is that, when they [Congress] pass an act, if it be in the execution of a power given by the Constitution, it shall be binding on the people, otherwise not [emphasis added]. Other ratifying conventions had similar debates, and proponents of the Constitution continually reassured wavering supporters that the Constitution would only be supreme within its delegated authority.

Most bought their assurances, though to staunch opponents, the Constitution still vested too much power in the central authority. The States would lose their sovereignty, they argued, and as a result, these men demanded an amendment to the Constitution that expressly maintained the sovereignty of the States and placed limits on federal power. Even several moderate supporters of the Constitution embraced this idea.

Ultimately, the three most powerful States in the Union, New York, Massachusetts, and Virginia, demanded that a bill of rights be immediately added to the Constitution; near the top of those recommended amendments on every list, a State sovereignty resolution. These ultimately became the Tenth Amendment to the Constitution, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Clearly the intent of this amendment was to mitigate any design the federal government had on enlarging its powers through the “supremacy clause.” If the power was not enumerated in the Constitution and the States were not prohibited by the Constitution from exercising said power, then that power was reserved to the States.

Several other constitutional “scholars” have weighed in on the debate in the last week, and each has invoked the “supremacy clause” to defend their opposition to State action against healthcare. Duke Law Professor Neil Siegel went so far as to suggest that the States are not reading the Tenth Amendment correctly. In perhaps the most outlandish statement of the debate, he also said, “Any talk of nullification bothers me because it’s talk of lawlessness.”

I guess Mr. Siegel has failed to consider that Idaho bill HO391 was passed by a legitimate legislative body elected by the people of the State. That would make it lawful.

Of course, this debate ultimately boils down to loose interpretation verses strict construction. Thomas Jefferson had the best line on this issue. When asked to read between the lines to “find” implied powers, Jefferson responded that he had done that, and he “found only blank space.”

The original intent of both the “supremacy clause” and the Tenth Amendment indicate that Idaho and the other States challenging Obamacare are justified and correct and that the legal profession is either in the tank for the federal government or has not read either the debates of the Constitutional Convention and/or the State ratifying debates. This should make people like Engstrom and Siegel, rather than legitimate State law directed at unconstitutional authority, irrelevant.

How would you feel if you received a letter from the U.S. Government informing you that because of a physical or mental condition that the government says you have it is proposing to rule that you are incompetent to handle your own financial affairs? Suppose that letter also stated that the government is going to appoint a stranger to handle your affairs for you at your expense? That would certainly be scary enough but it gets worse.

What if that letter also stated: “A determination of incompetency will prohibit you from purchasing, possessing, receiving, or transporting a firearm or ammunition. If you knowingly violate any of these prohibitions, you may be fined, imprisoned, or both pursuant to the Brady Handgun Violence Prevention Act, Pub.L.No. 103-159, as implemented at 18, United States Code 924(a)(2).”?

That makes is sound like something right from a documentary on a tyrannical dictatorship somewhere in the world. Yet, as I write this I have a copy of such a letter right in front of me. It is being sent by the U.S. Department of Veterans Affairs to hundreds, perhaps thousands, of America’s heroes. In my capacity as Executive Director of the United States Justice Foundation (USJF) I have been contacted by some of these veterans and the stories I am getting are appalling.

The letter provides no specifics on the reasons for the proposed finding of incompetency; just that is based on a determination by someone in the VA. In every state in the United States no one can be declared incompetent to administer their own affairs without due process of law and that usually requires a judicial hearing with evidence being offered to prove to a judge that the person is indeed incompetent. This is a requirement of the Fifth Amendment to the U.S. Constitution that states that no person shall “… be deprived of life, liberty, or property without due process of law…”.

Obviously, the Department of Veterans Affairs can’t be bothered by such impediments as the Constitution, particularly since they are clearly pushing to fulfill one of Obama’s main goals, the disarming of the American people. Janet Napolitano has already warned law enforcement that some of the most dangerous among us are America’s heroes, our veterans, and now according to this letter from the VA they can be prohibited from buying or even possessing a firearm because of a physical or mental disability.

Think about it, the men and women who have laid their lives on the line to defend us and our Constitution are now having their own Constitutional rights denied. There are no clear criteria for the VA to declare a veteran incompetent. It can be the loss of a limb in combat, a head injury, a diagnosis of PTSD, or even a soldier just telling someone at the VA that he or she is depressed over the loss of a buddy in combat. In none of these situations has the person been found to be a danger to themselves or others. If that was the case than all of the Americans who have suffered from PTSD following the loss of a loved one or from being in a car accident would also have to be disqualified from owning firearms. It would also mean that everyone who has ever been depressed for any reason should be disarmed. In fact, many of the veterans being deprived of their rights have no idea why it is happening.

The answer seems to be it is simply because they are veterans. At the USJF we intend to find the truth by filing a Freedom of Information Act request to the Department of Veterans Affairs to force them to disclose the criteria they are using to place veterans on the background check list that keeps them from exercising their Second Amendment rights. Then we will take whatever legal steps are necessary to protect our American warriors.

The reality is that Obama will not get all of the gun control measures he wants through Congress, and they wouldn’t be enough for him anyway. He wants a totally disarmed America so there will be no resistance to his plans to rob us of our nation. That means we have to ask who will be next. If you are receiving a Social Security check will you get one of these letters? Will the government declare that you are incompetent because of your age and therefore banned from firearm ownership. It certainly fits in with the philosophy and plans of the Obama administration. It is also certain that our military veterans don’t deserve this and neither do any other Americans.

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